Author: kancelaria

The existing list of principles of public procurement has been modified in the new Public Procurement Law to include an additional principle of efficiency, while shifting away from the primacy of competitive contract award procedures. The new Public Procurement Law has also changed the definition of the existing principle of transparency.

The principle of efficiency is defined as an obligation to ensure that a contract is awarded in a manner that guarantees both the best quality in relation to the resources that the contracting authority can allocate to the contract and the best ratio of expenditure to outcomes, including social, environmental and economic outcomes.

It is important to note that efficient spending is explicitly required under Article 44 of the Public Finance Act of 27 August 2009 (Dz.U.2019.869) which has been binding on the public finance entities since 2010; hence, this is not a critical change but a mere confirmation of the requirement. More to the point, it must be borne in mind that the efficiency of public procurement will not change with the incorporation of this new rule in the Public Procurement Law; to achieve that effect, a number of steps will have to be taken such as improving the qualifications of the procurement services, in particular in using the legal instruments provided in the Law; adopting best practices in respect of the bid assessment criteria, and shifting the global approach to EU fund spending to favour quality over quantity.

Under the new regulations, the principle of transparency incorporates the personal data protection requirements arising from Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119 of 4 May 2016, p. 1, as amended).

Besides, there are hardly any practical implications of the deletion of Article 10 of the existing Law to the extent that the provision lays down the principle of primacy of competitive contract award procedures. The mere fact that this language has been deleted will not affect the obligation to meet the strictly defined eligibility criteria for non-competitive contract award procedures.

We are pleased to announce that our Law Firm is providing advice to the Contract Engineer selected for the following railway project: Management and Supervision of the Delivery of an Investment Task under the Project entitled “Revitalisation of Railway Line No. 59 Section State Border – Chryzanów (S)”.

We are proud that Contract Engineer Multiconsult Polska has trusted us again in the delivery of key and strategic infrastructure projects.

More about the project itself HERE.

An article by Anna Dynek, Legal Counsel, and Roksana Góral, Advocate Trainee, addressing the practical side of self-cleaning was published in the September issue of Monitor Zamówień Publicznych, a public procurement trade journal.

The article appears on page 31. Be sure to take a look at the latest issue of Monitor Zamówień Publicznych and the publication by the Hoogells team.

Head of Public Procurement and Infrastructure, Legal Counsel

The 37th issue of the Zamawiający. Zamówienia publiczne w praktyce bimonthly published an article written by Anna Dynek, Legal Counsel, Roksana Góral, Advocate Trainee and Paulina Kowalewska, Legal Counsel Trainee, entitled: “Wybór strony przystąpienia do postępowania odwoławczego” [Choice of what party to be when joining appeal proceedings].

The article by the Hoogells team can be found on page 48 of the September issue. Apparently, something must have gone wrong and the photo captions mixed up our trainees… We put it down to a printing error, here at Hoogells, we exchange knowledge on a daily basis, anyway 🙂

Be sure to have a look at the latest issue of the “Zamawiający. Zamówienia publiczne w praktyce” journal and read the article by the Hoogells team.

Head of Public Procurement and Infrastructure, Legal Counsel

On 11 September 2019, the Sejm passed the new Public Procurement Law (“PPL”). The Law is now going to the Senate and is scheduled to come into force on 1 January 2021.

What changes are ahead of us?

• Measures to facilitate improved contract preparation;
• Simpler procedures, in particular for below EU threshold contracts;
• Enhanced competition and improved access to contracts;
• Balancing of the positions of contracting authorities and contractors;
• More transparent procedures;
• Proposed mechanism of alternative dispute resolution; and
• Changes concerning public procurement contracts, including regulation on the indexation of contracts.

Look forward to our new weekly posts #NewPPL and read the previous ones. We have already covered changes to the law taxonomy and in general provisions.

An amendment to the Legal Costs in Civil Cases Act has introduced major changes to the fee rates in litigation, largely affecting cases between business entities.

Corporate cases

The fee for a lawsuit in a number of cases concerning shareholder-company relationships has spiked from the previous PLN 2,000 to PLN 5,000. This increased fee applies to the following case types: company/partnership dissolution; exclusion of a shareholder/member from a company/partnership; repeal of a members’ resolution or a general meeting resolution; declaration of invalidity of a members’ resolution or a general meeting resolution; determination of the existence or inexistence of a company’s governing body resolution; repeal of a bondholder meeting resolution; and declaration of invalidity of a bondholder meeting resolution.

Regulatory cases

Fees payable for appeals and interlocutory appeals against decisions entered in proceedings before the President of the Energy Regulatory Office (URE), President of the Electronic Communication Office (UKE) and President of the Railway Transport Office (UTK) have soared tenfold. A fee of PLN 1,000 will have to be paid for an appeal, instead of the PLN 100 charged previously. Similarly, for an interlocutory appeal, the fee has climbed to PLN 500 from the previous PLN 50.

Intellectual Property cases

Legal costs have also changed for filing lawsuits over copyright and related rights and for invention, utility model, industrial design, trademark, geographic designation and topography rights lawsuits and lawsuits over other rights to intangible property, including Community intellectual property rights, as well as lawsuits against unfair competition.

For cases of the types above where the value of the claim exceeds PLN 20,000, a relative fee of 5% of that value will have to be paid on each claim for money for a lawsuit, but not more than PLN 200,000. This means that the fee payable will range from PLN 1,000 to as much as PLN 200,000, as applicable. For cases with claims below PLN 20,000, the fee for a lawsuit will be PLN 100 to PLN 1,000. For claims other than money the fee will be PLN 300.

Land and Mortgage Registers

The fixed fee of PLN 60 has gone to PLN 100 for the following application types: to establish a land and mortgage register; to join properties into one in a single land and mortgage register which already exists, whatever the number of properties being joined; to separate a property or a part of a property; to correct Section I-O concerning the designation of the property; to enter a warning of inconsistency between the legal status evidenced in the land and mortgage register and the actual legal status; and to make entries other than those listed in Articles 42 and 43 of the Legal Costs in Legal Cases Act.

Be on the lookout for new updates on changes to the Legal Costs in Civil Cases Act and the Polish Code of Civil Procedure.

Changes to general provisions. Subject-matter of regulation.

Scope: The New Public Procurement Law (“PPL”) has structured and gathered the scope of the act in § 1. It states that the New Public Procurement Law will address the issues of EU threshold and above-EU threshold public contracts and below-EU threshold contracts. The Law sets out the rules and procedures for awarding public contracts, remedies, public procurement audit and the competent authorities in matters provided for in the Law.

Applicability: Changes with regard to applicability are only made for easier reference. The New Public Procurement Law has grouped entities obliged to apply the Law into public contracting authorities, utilities contracting authorities and subsidised contracting authorities. This does not result in a modification of the applicability of the public procurement regime.

The one exception is the new approach to exclusions from the scope of utilities activities. Utilities contracting authorities have been identified not only according to their capacity, but according to their object, i.e. being engaged in activities across water management, energy, transport and postal service sectors, collectively referred to as utilities.

Thresholds: The New Public Procurement Law puts in place a simplified procedure for below EU threshold contracts and certain measures to simplify other procedures and the design contest and lays down the principles for public procurement efficiency.

A national threshold known as the de minimis threshold has been set for applicability of the appropriate rules. This is the amount below which contracting authorities are exempted from compliance with the Law. Currently, this amount is set at EUR 30,000. The New Public Procurement Law does not generally change the applicable threshold as such but has changed its currency to PLN 130,000, which roughly corresponds to the current euro amount. The purpose of denominating the threshold value in PLN is to spare contracting authorities the need to convert sums estimated and denominated in Polish zlotys into euros to check if the provisions of the Law apply or not.

The New Public Procurement Law provides for raising the Law applicability thresholds for defence and security contracts to match the EU thresholds. Thus, the EU thresholds will become applicable to defence and security works contracts (under the existing regime, the EU thresholds have only applied to deliveries and services).

Those regulations in the New Public Procurement Law which provide for exemptions from the application of the Law with respect to specific public contract types will transpose to the Polish national law the exemptions laid down in the EU law, including the Classical Directive and the Utilities Directive and the Defence Directive, for EU threshold and above-EU threshold contracts.

The Law will apply to classical contract award procedures where the value (exclusive of the value added tax) of a single purchase is below the Polish zloty amount of PLN 130,000 but no less than PLN 50,000, only to the extent concerning the publication of contract notices and the provision of reports on contracts awarded. This regulation will only apply to those contracts awarded by public contracting authorities which are not exempt from the application of the Law and those where the contract unit value is above the relevant threshold. Publication of notices in the Public Procurement Bulletin (BZP) will improve accessibility of public contract information for contractors.

Definitions: The New Public Procurement Law has expanded the definitions section of the current Public Procurement Law to include new statutory definitions and has amended, clarified and supplemented the existing definitions. The following new concepts have been defined: contract documents; innovation; supply chain; written form; contractor-related evidence and substance-related evidence; contract award; terms of reference; classical contracts; social services and other special services contracts; and defence and security contracts.

Furthermore, the definitions of the following terms scattered throughout the Public Procurement Law text have been inserted in the definitions section: Defence Directive; Classical Directive; Utilities Directive; design contest; and selection criteria.

Timelines: The New Public Procurement Law has upheld the civil-law nature of the contract award procedures, which means that timelines for the purposes of the contract award procedure and the public procurement contract will be calculated by reference to the Polish Civil Code.

Exemptions: just as under the current Law, exemptions from the application of the Law with respect to specific public contract types will be governed by provisions which transpose to the Polish national law the exemptions laid down in the EU law.

However, the New Public Procurement Law restricts the list of exemptions from the application of the Law. The list no longer includes the exemption from the application of the Law with respect to public grants and the exemption of de minimis contracts up to EUR 30,000. Under the bill, those contracts will be exempted from the regime of the Act pursuant to the provisions setting the Law applicability thresholds.

Effective 21 August 2019, major changes to the Legal Costs in Civil Cases Act of 28 July 2005 are coming into force following the publication of the Act of 4 July 2019 amending the Polish Code of Civil Procedure (“CCP”) and certain other acts (Journal of Laws [Dz. U.] 2019, item 1469) in the Journal of Laws on 6 August 2019. With this post, we are kicking off a new series to give you an overview of the changes made.

First of all, the current maximum court fee rate of PLN 100,000 will rise to PLN 200,000. The court fee charged on a summons to a conciliation hearing will become dependent on the value of the claim (instead of the existing fixed fee rates of PLN 40 or PLN 300).

Under the new legislation, for cases with claims up to PLN 20,000, the amendment introduces fixed fee rates ranging from PLN 30 to PLN 1,000, according to the value threshold.

For property rights cases with claims or appeals worth over PLN 20,000, a relative fee will be payable at 5% of the above value but no more than PLN 200,000. Hence, if the value of the claim or the value of the appeal in a case exceeds PLN 2,000,000 (up to PLN 4,000,000), the court fee due will be 5% of the claim’s worth, i.e. a pro rata amount between PLN 100,000 and PLN 200,000. For cases with claims of PLN 4,000,000 or more, the court fee will be PLN 200,000.

A fifth of the fee that would otherwise be charged on filing a lawsuit will be payable on an application for summons to a conciliation hearing.

The above changes are coming into effect as of 21 August 2019. Thus, filing request for a summons to a conciliation hearing or a lawsuit before 21 August 2019 would mean being able to benefit from the lower rates applicable under the existing legislation.

The upcoming new Public Procurement Law (“PPL”) act has a different taxonomy and chapter headings than the current one.

The existing breakdown has been almost fully revised already at this pre-enactment stage. ‘Classical’ contracts and those below EU thresholds have been organised under distinct titles. Separate sections have been devoted to utilities and defence contracts. Titles concerning alternative dispute resolution, public procurement audit and fines have been added. The “President of the Public Procurement Office” title has been replaced with a “Relevant Authorities for Public Procurement” title. The new piece of legislation will have 13 titles instead of the existing 9 titles.

Interestingly, the new act provides for a hotline to be set up a the Public Procurement Office. Be on the lookout for new updates on changes to the PPL act.

An amendment to the Patient Rights and Patient Ombudsman Act effective as of 4 May 2019 has changed how medical records are issued to patients.

What has changed?

The new provisions state that the first copy of medical records must be provided to a patient free of charge. A dilemma arose when an agent authorised by the patient requested access to the patient’s medical records. Medical facilities were in doubt if records provided to an agent should be considered the first free copy of medical records or a fee should be charged for a copy delivered to an agent.

The Ministry of Health believes that the amendments to the aforementioned Act will guarantee that a first copy of medical records is provided to a patient free of charge. Thus, it is irrelevant whether medical records are requested personally by the patient or by the patient’s authorised agent. Likewise, whether the authority is based on an authorisation referred to in the Act or on a power of attorney provided in the Polish Civil Code is of no relevance with regard to the request for medical records.

The key consideration in respect of a request for medical records is whether a patient benefits from access to their records for the first time.

Read more on the Patient Ombudsman’s website here.